The UnConstitutionality of Citizenship by Birth to Non-Americans

We well know how the courts and laws have spoken on the subject of children born to non-citizens (illegal aliens) within the jurisdiction of the United States by declaring them to be American citizens. But what does the constitution of the United States say about the issue of giving American citizenship to anyone born within its borders? As we explore the constitutions citizenship clause, as found in the Fourteenth Amendment, we can find no constitutional authority to grant such citizenship to persons born to non-American citizens within the limits of the United States of America.

We are, or should be, familiar with the phrase, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." This can be referred to as the citizenship clause of the Fourteenth Amendment, but what does it mean? Does it mean anyone born in the United States is automatically an American citizen? Fortunately, we have the highest possible authority on record to answer this question, the author of the citizenship clause, Sen. Jacob M. Howard (MI) to tell us exactly what it means and its intended scope as he introduced it to the United States Senate in 1866:

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.[1]

It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil, something our courts have wrongfully assumed. But what exactly did "subject to the jurisdiction thereof" mean to the framers of the Fourteenth Amendment? Again, we are fortunate to have on record the highest authority to tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase:

[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.

Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.[2]

Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.[3]

In other words, only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now. Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution:

[Now], all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.[4]

No doubt in the Senate as to what the citizenship clause means as further evidenced by Sen. W. Williams:

In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, 'subject to the jurisdiction of the United States,' to mean fully and completely subject to the jurisdiction of the United States.[5]

Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:

[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...[6]

Further convincing evidence for the demand of complete allegiance required for citizenship can be found in the "Naturalization Oath of Allegiance to the United States of America," an oath required to become an American citizen of the United States. It reads in part:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...

Of course, this very oath leaves no room for dual-citizenship, but that is another troubling disregard for our National principles by modern government. Fewer today are willing to renounce completely their allegiance to their natural country of origin, further making a mockery of our citizenship laws. In fact, recently in Los Angeles you could find the American flag discarded for the flag of Mexico in celebration of taking the American Citizenship Oath. James Madison defined who America seeked to be citizens among us along with some words of wisdom:

When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuse. It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. But why is this desirable? Not merely to swell the catalogue of people. No, sir, it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community are not the people we are in want of.[7]

In a nutshell, it means this: The constitution of the United States does not grant citizenship at birth to just anyone who happens to be born within American jurisdiction. It is the allegiance (complete jurisdiction) of the child’s birth parents at the time of birth that determines the child’s citizenship--not geographical location. If the United States does not have complete jurisdiction, for example, to compel a child’s parents to Jury Duty–then the U.S. does not have the total, complete jurisdiction demanded by the Fourteenth Amendment to make their child a citizen of the United States by birth. How could it possibly be any other way?

The framers succeeded in their desire to remove all doubt as to what persons are or are not citizens of the United States. They also succeeded in making both their intent and construction clear for future generations of courts and government. Whether our government or courts will start to honor and uphold the supreme law of the land for which they are obligated to by oath, is another very disturbing matter.

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[1]. Congressional Globe, 39th Congress (1866) pg. 2890 [2]. Id. at 2893 [3]. Id. at 2895 [4]. Id. at 2893 [5]. Id. at 2897 [6]. Id. at 1291 [7]. James Madison on Rule of Naturalization, 1st Congress, Feb. 3, 1790.

Permission is granted to use, copy or republish this article in its entirely only. Last updated 2/20/05.

I think illegals contribute far more then they take away from society and boost our economy.

Just remember that the next time you pay a large rent for a small apartment, too much for too little of a house and your property taxes. The housing problems in the USA , shortage and cost, are in no small part, being driven by excessive immigration.
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So your saying that adding tens of thousands (or more) dollars to the value of every house and property across America is a bad thing?

It makes our GDP more, it enables productive citizens to raise more capital for their businesses. It makes America more valuable and prosperous then ever.

In effect, you make my point even stronger. People are moving to midwestern states for cheaper new housing.

New housing would be even cheaper their if the Federal government would give up owning 90% of states like Nevada. Again, it's a Big Governement problem.

I had, until I was 18, both United States (born to a serviceman overseas) and German citizenship. Of course I picked the US citizenship, but this isnt just a US thing.

Same for me, born in Germany and got my U.S. citizenship around 9 years old. You and I were neither German nor American until receiving citizenship, so claiming U.S. citizenship just because one happens to drop out on American soil is bogus, IMHO.

So your saying that adding tens of thousands (or more) dollars to the value of every house and property across America is a bad thing?

Yes, because it is not a realistic value. It is actually not "value", but an inflation brought about by too many people chasing too few dwellings.

Yes, because it is not a realistic value. It is actually not "value", but an inflation brought about by too many people chasing too few dwellings.
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You've stated the definition of how value is generated. Supply and Demand set the market price for a good or service.

Inflated value would be the false perception that there is either less supply or more demand then actually exists, or unrealistic expectation that either one will occur in the future.

Since there actually is more demand for housing this isn't the case.

Inflated value would be the false perception that there is either less supply or more demand then actually exists, or unrealistic expectation that either one will occur in the future.

The perception is not false. It is the reality. The supply of dwellings is less than the demand. Real Estate does not succumb to the platitudes of "Free Market" theories that can be supposed upon commodities. Housing has complications, not the least of which are interest rates, the money supply and the long term effects of the deficit.

It seems to me that the Mexicain government is and has been demanding a say in any capitol case that involve one of their citizens in our courts. Is not that a claim of a jusidiction outside of our own? That claim has also been approved by The world Court in the Hague.

If I remember correctly and we're thinking of the same case, that's not a jurisdictional dispute, but one over due process involving Consular officials.

The State Dept makes reference to the applicable treaty on their webpage devoted to Americans arrested abroad.

Absolutely. For a group of intelligent folks who consistently clamor for a plain reading of the organic document to ascertain its meaning, there seems to a contrary movement here to read a meaning into the Constitution that is directly contradictory to the exact language in the text.....And, by the way, it would be exciting to learn how Congress can amend the Constitution by an act alone without the amendatory process of ratification.

First, the plain language says anyone born in the US is a citizen. Second, the 5th and 14th Amendments prohibit government to deny any "person" (not "citizen") equal protection of the laws.

The Constitution refers to "persons" - not citizens who are entitled to equal protection of the law. There are dozens of Sup. Ct. cases holding that priciple.

Yes "persons" born or naturalized in the United States, and subject . "And" as in "both". Illegal Aliens are not subject to our jurisdiction. Senator Jacob Howard, co-author of the citizenship clause of the 14th Amendment, stated in 1866, "Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

If you're on American soil, you're under American jurisdiction unless specifically granted other status.

Explain, then, how a participant in the original legislation clearly thought otherwise:

Further, are you then arguing that British soldiers and mercenaries during the War of 1812 were under the "jurisdiction" of the United States and thereby any children born here to them were also citizens?
How about any children that might have been fathered by the mass murderers of 911 ?

The supply of dwellings is less than the demand.
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Yes, which is why prices are rising. I'm not sure what your getting at, I think we're going around in circles.

"Housing has complications, not the least of which are interest rates, the money supply and the long term effects of the deficit."

That may be, but it's not relevant to your argument that immigrants are unfairly increasing the price of housing. Unless you can prove that immigration has an effect on 'interest rates, the money supply, and the long term effect of the deficit.' Infact, I'd say they probably do have an impact on these things, but in a beneficial way (whatever that is).

S 61 wasn't the finished product - all that matters is what appears under the 14th Amendment, and the language therein is explicit:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Let's leave the fanciful interpretation thing to others, shall we?

The only question here is who is subject to the jurisdiction of the United States.

I can't answer for conditions back in 1812, but as of today, my understanding of American jurisdiction relevant to this matter is that it encompasses the area within our National borders, excluding foreign embassies and the like, so any children born of the 9-11 hijackers on our soil would become citizens, and it is that same understanding of jurisdiction which has allowed Zaccharias Moussaoui, a French citizen, to be arrested on our soil and tried in our courts - he has plainly fallen under our jurisdiction.

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